J-E01012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY S. HASKINS,
Appellant No. 1815 MDA 2014
Appeal from the PCRA Order October 1, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003755-2008
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
LAZARUS, MUNDY, OLSON, OTT, AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 06, 2016
Anthony Haskins appeals pro se1 from the October 1, 2014 order
denying his first timely PCRA petition. We vacate the October 1, 2014 order
and Appellant’s January 18, 2011 judgment of sentence and remand for
resentencing.
Based on the following proof, a jury found Appellant guilty of
possession of a controlled substance with intent to deliver (“PWID”), person
____________________________________________
1
The PCRA court permitted initial PCRA counsel to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Thereafter, based on Appellant’s response to the court’s notice of intent to
dismiss the petition without a hearing, the court appointed new PCRA
counsel. That attorney was allowed to withdraw after Appellant requested to
proceed pro se and was given a colloquy regarding waiver of counsel. N.T.
PCRA Hearing, 7/30/14, at 15-17.
J-E01012-16
not to possess a firearm, carrying an unlicensed firearm, and possession of
drug paraphernalia. On April 9, 2008, Harrisburg Police responded to a
report of shots fired in the area of 13th and Market Streets in Harrisburg
City. Appellant, who was located on 13th Street, was the shooting victim.2
Witnesses reported that Appellant was actually shot on Brady Street, which
was close to where he was found. At the corner of Brady Street, police
found a functional gun and a set of car keys belonging to a silver Honda
parked nearby on Howard Street. The Honda belonged to Alina Everchik,
who was sitting in the vehicle when officers discovered it. Everchik reported
that Appellant was her friend, had borrowed the car that morning, and, after
he was shot, Appellant called her and told her to move that vehicle. She
was unable to comply with Appellant’s request because she did not have its
keys.
Police had the car towed to the lot of a towing company, and obtained
a search warrant for the Honda the following day. They discovered therein
two clear baggies containing a total of 24.9 grams of marijuana. Everchik
denied ownership of the marijuana. Police then obtained a warrant for
Appellant’s residence, where they found Everchik and Appellant as well as
37.1 grams of marijuana and a digital scale. Appellant admitted that the
____________________________________________
2
Appellant initially refused to identify his assailant, but eventually told
police that Donald Woods shot him.
-2-
J-E01012-16
marijuana in the residence belonged to him and that he had been driving the
Honda on April 9, 2008, from morning until the time of the shooting. The
Commonwealth also presented expert testimony that, under the facts and
circumstances present in this case, the marijuana in question was possessed
with the intent to deliver.
The trial court imposed its judgment of sentence on January 18, 2011.
The sentence included application of 42 Pa.C.S. § 9712.13 on the PWID
offense. N.T. Sentencing, 1/18/11, at 15. The court also sentenced
Appellant to a consecutive term of incarceration of three to six years on one
of the firearm offenses so that Appellant’s aggregate judgment of sentence
was eight to sixteen years incarceration. Appellant timely appealed to this
Court, which affirmed on September 25, 2012. Commonwealth v.
Haskins, 60 A.3d 861 (Pa.Super. 2012) (unpublished memorandum). Our
Supreme Court denied allowance of appeal on May 6, 2013.
Commonwealth v. Haskins, 67 A.3d 794 (Pa. 2013).
On June 17, 2013, the United States Supreme Court disseminated its
decision in Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013),
____________________________________________
3
Section 9712.1, which has been ruled unconstitutional, required imposition
of a five-year mandatory minimum jail term for a PWID conviction if a
firearm was found in close proximity to the illegal drugs. That statute also
stated that its provisions were not elements of the crime and were to be
determined at sentencing by the court pursuant to a preponderance-of-the-
evidence standard.
-3-
J-E01012-16
wherein the Court held that “[a]ny fact that, by law, increases the penalty
for a crime is an ‘element’ that must be submitted to the jury and found
beyond a reasonable doubt.” Pursuant to Alleyne, the defendant has a
constitutional right to have a jury decide the existence of any fact, other
than a prior conviction, beyond a reasonable doubt if that fact triggers
application of a mandatory minimum sentence. Herein, the facts necessary
for application of § 9712.1 were found by the sentencing court pursuant to a
preponderance of the evidence standard. See footnote 3, supra. On August
20, 2014, this Court decided in Commonwealth v. Newman, 99 A.3d 86
(Pa.Super. 2014) (en banc), that 42 Pa.C.S. § 9712.1 is unconstitutional in
its entirety under Alleyne.4
Appellant herein did not file a writ of certiorari from our Supreme
Court’s May 6, 2013 denial of allowance of appeal from our affirmance of his
judgment of sentence. Appellant did file a timely pro se PCRA petition on
May 30, 2013. On June 3, 2013, the PCRA court appointed counsel, who
was subsequently permitted to withdraw. See footnote 1, supra. As noted,
on June 17, 2013, the United States Supreme Court decided Alleyne. Even
though a writ of certiorari could have been timely filed following PCRA
____________________________________________
4
In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), our Supreme
Court employed the same reasoning as the en banc Court in Newman, and
declared a different mandatory minimum sentencing provision, 18 Pa.C.S. §
6317, void in its entirety under Alleyne.
-4-
J-E01012-16
counsel’s June 3, 2013 appointment, PCRA counsel did not file that writ.
Specifically, Appellant had until August 4, 2013, ninety days after the May 6,
2013 denial of allowance of appeal by our Supreme Court, to seek certiorari
in the United States Supreme Court.5
In this timely PCRA proceeding, Appellant sought relief from his
judgment of sentence pursuant to Alleyne. On October 1, 2014, the PCRA
court denied relief based upon its conclusion that Alleyne was not
retroactively applicable to PCRA petitioners. This timely appealed ensued,
and the matter initially was submitted to a panel. This Court sua sponte
granted en banc review. The only relief that Appellant seeks in this appeal is
re-sentencing without application of the unconstitutional mandatory
minimum sentence applied in this matter.
____________________________________________
5
United States Supreme Court Rule 13 states:
Unless otherwise provided by law, a petition for a writ of
certiorari to review a judgment in any case, civil or criminal,
entered by a state court of last resort . . . is timely when it is
filed with the Clerk of this Court within 90 days after entry of the
judgment. A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary
review by the state court of last resort is timely when it is filed
with the Clerk within 90 days after entry of the order denying
discretionary review.
U.S. Sup. Ct. R. 13.
-5-
J-E01012-16
On January 25, 2016, Appellant submitted a supplemental brief
seeking application of our December 30, 2015 decision in Commonwealth
v. Ruiz, 131 A.3d 54 (Pa.Super. 2015). The Commonwealth did not
respond to the supplemental brief. In Ruiz, the defendant was denied PCRA
relief pursuant to a timely-filed PCRA petition. On appeal, the defendant,
who was sentenced under the same mandatory minimum at issue in the
present case, claimed that he was entitled to re-sentencing under Alleyne
and Newman. We agreed with that contention, vacated the judgment of
sentence, and remanded for resentencing.
The Ruiz Court concluded that Ruiz was entitled to be re-sentenced
since he filed a timely PCRA petition and since Alleyne had been decided
when his judgment of sentence was not final, as defined by the PCRA.
Specifically, Ruiz did not file a direct appeal, but Alleyne was issued within
the thirty-day window for filing one. In Ruiz, we specifically distinguished
Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015), which held
that a PCRA petitioner is not entitled to retroactive application of the
Alleyne decision. The Ruiz Court concluded that Riggle was inapplicable
because Alleyne was issued after Riggle’s sentence was final, as defined by
the PCRA. In so doing, we observed that Newman held that Alleyne
applies to any case pending on direct appeal when Alleyne was filed. See
Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When a decision of this
-6-
J-E01012-16
Court results in a ‘new rule,’ that rule applies to all criminal cases still
pending on direct review.”).6
Our conclusion in Ruiz was that, if a defendant’s direct appeal was
pending when Alleyne was filed, the defendant is entitled to relief pursuant
to a timely PCRA petition since an Alleyne claim is a non-waivable challenge
to the legality of sentence, which is cognizable under the PCRA. See
Newman, supra at 90 (“challenge to a sentence premised upon Alleyne . .
. implicates the legality of the sentence,” and such a challenge cannot be
waived); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super. 2004)
(“Issues concerning the legality of sentence are cognizable under the
PCRA.”). Under Ruiz, a defendant is entitled to relief pursuant to Alleyne
and Newman if the defendant’s judgment of sentence was still pending on
direct review, as determined by reference to § 9545(b)(3) of the PCRA,
when Alleyne was filed.
We find Ruiz persuasive and apply it in the present case. Appellant’s
judgment of sentence was still pending on direct review when Alleyne was
issued. Section 9545(b)(3) states, “For purposes of this subchapter, a
judgment becomes final at the conclusion of direct review, including
____________________________________________
6
Alleyne is a new rule of law in that it overruled existing Supreme Court
precedent that provided that any fact necessary to trigger application of a
mandatory minimum sentence did not have to be submitted to a jury and
proven beyond a reasonable doubt. See Harris v. United States, 536 U.S.
545 (2002); McMillan v. Pennsylvania, 477 U.S. 79 (1986).
-7-
J-E01012-16
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). On May 6, 2013, our Supreme Court
denied allowance of appeal from our affirmance of Appellant’s judgment of
sentence. As analyzed, supra, Appellant had ninety days to petition for a
writ of certiorari. Thus, Appellant’s judgment of sentence became final for
purposes of § 9545(b)(3) on August 4, 2013, when the time for seeking
review in the United States Supreme Court expired. Alleyne was issued on
June 17, 2013, while Appellant’s direct appeal was pending, and he therefore
is entitled to application of Alleyne and Newman.
The October 1, 2014 PCRA order and the January 18, 2011 judgment
of sentence are vacated. Case remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
-8-